George Bain v. The
State.

No. 1467. Decided February 23, 1898.

1. Carrying Pistol--Defendant as
Witness--Cross-examination and impeachment.On a trial for unlawfully
carrying a pistol, where defendant becomes a witness in his own behalf, it is
not competent for the State to ask him if it is not a fact that he has been
charged, in a number of instances, with a like offense. The fact that a man
unlawfully carries a pistol can not affect to bar his credibility as a
witness.

2. Same--Traveler.On a prosecution for
unlawfully carrying a pistol, where it apepared that defendant lived in M.
County, thirty-five miles on a direct line to the point of destination, where he
arrived at 1 o'clock, remained over night, and returned home next day, Held, he
was evidently a traveler.

3. Same--Suggestion to Legislature to Define the
Statutory Word "Traveler."In view of the fact that the decisions as to
what constitutes a traveler are not harmonious, and the further fact that to
give the word a liberal construction or definition would, in a great measure,
tend to defeat the purpose of the law against carrying a pistol, it is suggested
that the Legislature define what is meant by the word "traveler."

Appeal from County Court of
Motley. Tried below before Hon. A. R. Anderson, County
Judge.

Appeal from a conviction for unlawfully carrying a pistol; penalty, a
fine of $35.

The opinion states the case.

W. M. Smith, for appellant.

Mann Trice, Assistant Attorney-General, for
the State.

HENDERSON,
Judge.--Appellant was convicted of carrying a pistol, and his punishment
assessed at a fine of $35; hence this appeal.

Upon the trial, the defendant being on the stand as a witness in his
own behalf, the state asked him "if it is not a fact that you have been
heretofore charged, in a number of instances, in this county, with like
offense?" to which he replied, "I have been charged before with like offenses; I
don't know how many times." This evidence was clearly inadmissible. The fact
that a man unlawfully carries a pistol is no bar upon his credibility as a
witness. The lowest penalty attached to this offense is a fine of $25. The jury
assessed a fine of $35. This illegal testimony may have caused this result. The
defense was that appellant was a traveler. It appears from the record that he
lived in Motley County, about thirty-five miles on a direct line from Childress,
the point of his destination, and in going to which place on this journey he
passed through portions of several counties. He arrived at Childress about 1
o'clock in the day, and remained over night, returning home the next day.
Unquestionably, this raised the issue whether or not he was a (p.636)traveler at the time he was charged with carrying the
pistol. The illegal evidence may have induced the jury, notwithstanding they
might have believed he was a traveler, to find against him because of his habit
of carrying pistols.

Under the circumstances of this case, we believe the defendant had a
good defense. He was evidently a traveler. We are aware that the decisions upon
this point are not harmonious. See Darby v. State, 23 Tex. Crim.
App. 407, 5 S.W.
90; Price v. State, 34 Tex. Crim. Rep. 102, 29 S.W. 473;
Stanfield v. State, (Tex. Cr. App.) 34 S.W. 116; Eubanks v. State (Tex. Cr. App.) 40 S.W. 973; Stayton v. State, Id. 299. The fact is that it is difficult to
tell, under the statute, who is a traveler. The statute uses the term
"traveler," and exempts all such from liability or punishment for carrying a
pistol. The general definition of a "traveler," in the dictionaries, is "one who
travels in any way; one who makes a journey, or who goes from place to place."
See Cent. Dict.; Webst. Dict. By this term, construed
under its ordinary meaning, almost any one who goes from place to place would be
exempt from the operation of the law. We do not understand, however, that it was
the object of the lawmakers to place this liberal construction on the statute by
the use of this term. Article 9, Penal Code 1895, requires:
"All offenses shall be plainly defined, and the import of the language shall be
construed without regard to the distinction usually made between the
construction of penal laws and laws upon other subjects, and no person shall be
punished for an offense which is not made penal by the plain import of the
words." Article 25, Code Criminal Procedure, 1895,
provides: "The provisions of this Code shall be liberally construed so as to
attain the objects intended by the legislature, the prevention and suppression
and punishment of crime." If the liberal definition is given to the word
"traveler," almost every person who goes from one place to another may be
considered a traveler. If a statutory interpretation or construction is
enforced, it is difficult, under the definition, to determine who is a traveler.
We would suggest, in this state of uncertainty, that the legislature define what
is meant by a "traveler." For the error above pointed out, the judgment is
reversed, and the cause remanded.